A federal judge will hear arguments in San Francisco Wednesday morning on a bid by sponsors of California’s same-sex marriage ban for dismissal of a lawsuit challenging the measure.

Proposition 8, the ban on gay and lesbian marriages, was passed by California voters last November as an amendment to the state Constitution.

A lawsuit challenging the initiative was filed by in federal court in May by two same-sex couples who say the measure violates their federal constitutional rights to due process and equal treatment.

In the motion to be argued before U.S. District Judge Vaughn Walker, the sponsors of Proposition 8 say a trial on the lawsuit isn’t needed because “there is no fundamental right to same-sex marriage” in the U.S. Constitution.

In a meeting with gay-rights activists last week, Senate Majority Leader Harry Reid criticized the LDS Church for backing a ballot measure banning same-sex marriage in California, saying the

Photo from the Associated Press

leaders of his faith should have stayed out of the contentious political fight.

Reid, a Democrat from Nevada, is the highest ranking elected official who is a member of The Church of Jesus Christ of Latter-day Saints. He previously has not commented on the flood of Mormon money and volunteers who helped propel Proposition 8 to victory in November.

But three organizers of the past weekend’s National Equality March said Reid brought up the topic during a conversation in his office.

“He said that he thought it was a waste of church resources and good will,” said Derek Washington, a Nevadan who worked as the outreach director for the march. “He said he didn’t think it was appropriate.”

In a rare public rebuke of state government and policies delivered by a sitting judge, the chief justice of the California Supreme Court scathingly criticized the state’s reliance on the referendum process, arguing that it has “rendered our state government dysfunctional.”

In a speech Saturday before the American Academy of Arts and Sciences in Cambridge, Mass., the chief justice, Ronald M. George, denounced the widespread use of the referendum process to change state laws and constitutions. And he derided California as out of control, with voters deciding on everything from how parts of the state budget are spent to how farm animals are managed.

The sponsors of California’s same-sex marriage ban must hand over some internal campaign records to lawyers seeking to overturn the voter-enacted initiative, a federal judge in San Francisco ruled Thursday.

Denying a request to shield the information, U.S. District Chief Judge Vaughn Walker said the Protect Marriage campaign had failed to show that providing private e-mails, memos and reports would inhibit the political activities of gay marriage opponents or subject them to unbridled harassment.

For most of his eight years on the California Supreme Court, the low-key and affable Carlos R. Moreno largely blended in with the six other justices, building a reliably middle-of-the-road record.

Then came Proposition 8, the initiative that reinstated a ban on same-sex-marriage. In May, Moreno cast the court’s only vote to overturn it.

Now, with the court’s term concluding last month, the jurist chosen because of his moderate views is getting a second appraisal from legal analysts, who say his unexpected boldness may signal a growing independence. His lonely stance has raised his profile and encouraged speculation that he may be stepping into a more visible role.

The issue before a federal judge in January will be same-sex marriage in California and whether the 14th Amendment to the U.S. Constitution, with its guarantees of equal protection and due process of law, prohibits Proposition 8 and other bans on the right to marry. As a constitutional case, it will involve its share of arguments about meeting legal tests for various levels of judicial scrutiny and whether homosexuals constitute a “discrete” group. Dry stuff indeed, and yet the lawsuit against Proposition 8 also threatens to be an emotionally wrenching case about the nature of homosexuality, just as the proposition itself was one of the most rancorous and divisive issues to face California voters in recent years.

Is sexual orientation inborn or a choice? Can it be changed? If so, should it be changed? Do gay and lesbian partners make good parents? As good as straight parents? Do homosexuals contribute as much to society as heterosexuals? Would their marriages harm the unions of heterosexual couples and the institution of marriage? As the case unfolds, it could pose those and other questions, presenting an opportunity to debate seemingly every prejudicial canard about gays and lesbians. And what’s especially dishearteningis that it is the plaintiffs — those seeking to end the state’s ban on same-sex marriage — who may force the debate for the purpose of dismissing those tired biases and strengthening their constitutional argument.

On March 5th, OutNow had a seat to view the Prop 8 oral arguments in the room reserved by the National Center for Lesbian Rights (NCLR), near the California Supreme Court Building in San Francisco.

Over the last several weeks OutNow has talked with several of the attorneys who argued the case against Prop 8 as well as a few constitutional law experts to see what could be gleaned from what they thought while waiting for the Court’s decision.